Criminal statutes are least objectionable when they are justified by the notion that the conduct being prohibited is harmful to others. Over the past few decades, a new argument has arisen that makes this very easy to do. This argument appeals to the reality that often when one’s conduct causes or risks physical injury to one’s self, governmental services (e.g. rescue, police, healthcare) will be provided, and that the cost of these services is an unfair burden imposed upon taxpayers. This argument understands the taxpayers to be victims, and the self-harming conduct to therefore be harmful to others, and justifiably criminalized. This Article unearths this so far un-assessed argument from various legal sources, and analyzes it with the tools of criminal law theory to see whether or not it can hold water. Ultimately, the conclusion is “no,” and an alternative solution is advanced: civil liability.

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography. Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.

This article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to counterstereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counterstereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counterstereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counterstereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

Cheryl Nelson-Butler (Southern Methodist University) has posted Blackness as Delinquency (Washington University Law Review, 2013 Forthcoming) on SSRN. Here is the abstract:

This article makes several important contributions to the scholarly literature on the juvenile court. To my knowledge, this will be the first law review article to address both the role of “Blackness” in shaping the first juvenile court as well as the black community’s response to the court’s jurisprudence. This article breaks new ground on two fronts. First, it considers the first juvenile court’s treatment of black youth within the context of the heightened racial oppression immediately following the Supreme Court’s landmark decision in Plessy v. Ferguson. Second, this article recovers the lost story of the black club movement’s response to race issues within the juvenile court movement. In doing so, this article reconsiders the history of the national black club women’s movement within a new framework – that of black women as advocates for juvenile and criminal justice reform. Furthermore, a major issue that these child savers faced remains one that scholars of the juvenile court’s early history have not fully explored – race.

In 2010 the United States Supreme Court decided Graham v. Florida, which held that LWOP sentences for juvenile, non-homicide offenders were unconstitutional. This Comment argues that de facto LWOP sentences, lengthy term of years sentences that exceed a juvenile's natural life expectancy and effectively guarantee the offender will die in prison, are also unconstitutional for juvenile non-homicide offenders.

Lisa Milot (University of Georgia Law School) has posted Illuminating Innumeracy (Case Western Reserve Law Review, Vol. 63, (2013) (Forthcoming)) on SSRN. Here is the abstract:

Everyone knows that lawyers are bad at math. Many fields of law, though — from explicitly number-focused practices like tax law and bankruptcy, to the less obviously numerical fields of family law and criminal defense — require interaction with, and sophisticated understandings of, numbers. To the extent that lawyers really are bad at math, why is that case? And what, if anything, should be done about it?

The Federal Sentencing Guidelines provide for special treatment of hard-core cartel activity to ensure that penalties for antitrust crime provide adequate deterrence. The U.S. Supreme Court’s transformational sentencing cases, however, have returned significant discretion to sentencing judges, potentially undermining the policy balance achieved by the Antitrust Guideline. Judicial discretion in sentencing, however, is not unlimited. Rather, judges are required to impose sentences that are “sufficient, but not greater than necessary” to achieve the goals of sentencing, subject to appellate review for reasonableness. This note analyzes whether there is a sustainable basis for judicial policy disagreement with the Antitrust Guideline’s use of a proxy to measure economic harm. This note argues that judicial discretion to vary from the Antitrust Guideline’s harm proxy, appropriately cabined by appellate review, will not undermine antitrust sentencing policy. Finally, this note concludes that judicial discretion may actually enhance other legitimate goals of white-collar sentencing, including moral condemnation.

The police used some level of physical force in more than one in five stops across the city last year, according to an analysis by The New York Times. In the West Bronx, the rate was more than double that. Yet the high level of force seldom translated into arrests, raising questions among black and Latino leaders about whether officers were using enough discretion before making the stops in the first place, much less before resorting to force.

. . .

City Councilman Fernando Cabrera, who represents the West Bronx, called the numbers “alarming.”

“If indeed they were resisting arrest, or if there were any other kinds of crimes being committed that would call for that kind of aggressiveness, you would expect to see a correlation in arrests,” he said. “Instead, we see the total opposite.”

In this invited essay, I suggest that public defenders seeking relief from excessive caseloads differentiate themselves from other burdened stakeholders by using a more qualitative, ethics-based approach to assess effective assistance of counsel. Part II of this Article chronicles the current quantitative, numbers-based approach to measuring effective assistance given the U.S. Supreme Court’s current Strickland standard. Part III.A turns to the more qualitative, ethics-based standards for assessing effective assistance as expressed in the ethical rules. Part III.B then illustrates how to use those qualitative standards when seeking caseload relief from courts. First, in Part III.B.1, I show how to view the excessive caseload problem as an unethical conflict of interest that should be addressed at the outset of a proceeding. By viewing an excessive caseload as a conflict of interest, rather than as a competency issue, public defenders can further distinguish their claims for relief from the claims of other overworked constituents. Specifically, in Part III.B.2, I show how public defenders could use existing qualitative ethical standards to highlight the hidden harms of excessive caseloads and to increase the chances of their ethical obligations being honored by judges. Part IV concludes that using qualitative ethical standards is a particularly advisable approach in times of resource constraint when everyone — lawyers, judges and legislators — can be “blinded by numbers.”

Gideon Yaffe’s "Excusing Mistakes of Law" seeks to explain "the asymmetry between the excusing force of mistakes of fact and law." In this paper, I offer a competing explanation of the asymmetry and criticize Gideon's explanation. Behind some of the specific issues concerning mistake of fact and mistake of law lie more fundamental questions about the nature of law and about the relation between law and morality. Underlying Gideon's proposal seems to be an assumption that the legal domain has an internal structure parallel to that of the moral domain: legal reasons, legal obligations, legal excuses, and so on bear the same relations to each other that, within the moral domain, moral reasons, moral obligations, moral excuses, and so on bear to each other. In particular, Gideon relies on the assumption that just as, absent special circumstances, one who acts on morally wrong principles is, for that reason, morally blameworthy or morally deserving of reproach or punishment, so one who acts on legally wrong principles is, for that reason, legally deserving of punishment.

What have the economists contributed to the study of criminal behavior and crime control? In what follows, to motivate and describe the contributions to this edited volume, we discuss three domains:

• A normative framework for evaluating criminal law and crime prevention, and the application of sophisticated quantitative methods to analyze the causes of crime and the effects of crime-control measures in this framework;• The conception of criminal behavior as individual choice, influenced by perceived consequences; • The aggregation of individual choices to a systems framework for understanding crime rates and patterns.

The papers in this volume are informed by and contribute to all of these domains.

This essay, based on an address delivered at the Sixth Annual Texas Tech Criminal Law Symposium, explores the paradox of Gideon v. Wainwright and suggests some new directions for improving defense of the indigent against criminal charges. The paradox of Gideon lies in the widespread agreement (1) that Gideon was a great decision; (2) that from a formal perspective, the Sixth Amendment’s text and history provide scant support for Gideon’s adoption of the Zerbst rule requiring appointment for all indigent defendants in felony cases; and (3) that from a functional perspective, Gideon has not led to effective representation for all defendants. If almost no one thinks Gideon was required by text and history, and if almost no one thinks Gideon has delivered effective representation, why does almost everyone love Gideon?

Reforms are put forward for discussion. These include (1) exempting some self-representing felony defendants, like their misdemeanor counterparts, from sentences of incarceration if convicted; (2) giving counsel for indigent defendants discretion to decline unpromising appeals; (3) permitting lay representation of juvenile and misdemeanor defendants; and (4) recognizing indigent defense as a separate career track from the general practice of law.

Elderly prisoners are twice as expensive to incarcerate as the average prisoner and pose little danger to society, yet the population of elderly prisoners in the United States is exploding. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it.

This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s. Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.

For over a decade, there has been a spirited academic debate over the impact on crime of laws that grant citizens the presumptive right to carry concealed handguns in public – so-called right-to-carry (RTC) laws. In 2005, the National Research Council (NRC) offered a critical evaluation of the “More Guns, Less Crime” hypothesis using county-level crime data for the period 1977-2000. 17 of the 18 NRC panel members essentially concluded that the existing research was inadequate to conclude that RTC laws increased or decreased crime. One member of the panel, though, concluded that the NRC's panel data regressions supported the conclusion that RTC laws decreased murder.